(Originally published at conflictconversations.org/blog)

The Problem

The Ontario Mandatory Mediation Program (OMMP) prescribes mediation, with some exceptions, in civil litigation in Toronto, Ottawa, and Windsor. Mediators on the OMMP roster are governed by the Canadian Bar Association, Ontario (CBAO) Model Code of Conduct for ....

The CBAO Code privileges one approach to mediation (variously known as interest-based, settlement-driven, and facilitative) and thereby excludes others. By incorporating the CBAO Code, the OMMP restricts civil litigants to that given mediation model. Furthermore, in the facilitative approach to mediation, it is the mediator who controls the process while the parties are said to 'own the conflict'.

The Argument

In the Canadian Arbitration and Mediation Journal (Spring/Summer 2013, vol..., Weldon, Folger, and Bush note:

The CBAO code begins with a section mandating mediator respect for party self-determination, but it is followed by another section mandating considerable mediator decision-making power over questions of both process and potential outcome.

It states: “Self-determination is the right of parties in a mediation to make their own voluntary and non-coerced decisions regarding the possible resolution of any issue in dispute. It is a fundamental principle of mediation which mediators shall respect and encourage.”

The above statement appears to allow parties “to make their own voluntary and non-coerced decisions”, but in the section entitled XI. Termination or Suspension of Mediation, the code orders that mediators shall terminate a mediation if any one of the following situations is perceived to exist in the opinion of the mediator and it has not been not rectified by the parties:
(a) the process is likely to prejudice one or more of the parties;
(b) one or more of the parties is using the process inappropriately;
(c) one or more of the parties is delaying the process to the detriment of another party or parties;
(d) the mediation process is detrimental to one or more of the parties or the mediator;
(e) it appears that a party is not acting in good faith;
(f) there are other reasons that are or appear to be counterproductive to the process.
(emphasis added)

The loosely definable terms reproduced in italics mandate mediators to 1) form an opinion about what they perceive to be happening in the room (or which might perceivably happen in the future), 2) point out the offending situation to the party or parties, 3) require parties to rectify the situation, and 4) terminate mediation if they consider that the parties have not complied with their instructions. In these key respects, the CBAO code can be said to mandate a mediator-driven model of mediation and thereby exclude approaches to practice which prioritize party self-determination of parties at all points in the mediation.

Civil litigants in Toronto, Ottawa, and Windsor who are required to attend mediation do not have any choice as to the model of mediation; they must participate in an interest-based process. As well, the mediation process is controlled by the mediator unlike other available models of mediation.

In direct contrast to the CBA Code adopted by the OMMP is the ADR Institute of Canada Code of Conduct for Mediators which Weldon, Folger, and Bush conclude is "inclusive of both mediator-driven and party-driven models of mediation."

Alas, the Ministry of the Attorney General of Ontario subscribes to the CBA Code and curtails party choice in important respects.